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Bill Aims to Increase Public Safety While Shrinking Prison Population

Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

Posted on Oct 08, 2012

This past year, Ohio House Bill 86 was signed into law. It was designed, in part, to address the overcrowding of prisons within the state. At more than 51,000 inmates, the current state prison population is 33 percent over capacity. The Ohio Department of Rehabilitation and Correction predicts that without the remedies addressed in the bill, the prison population would have increased to more than 40 percent over capacity by 2015.

The bill additionally addresses high recidivism rates by implementing recommendations from the Council of State Governments Justice Reinvestment Center. The primary issues of concern are property and

drug crime offenders who complete a short prison sentence and are returned to society without necessary supervision. In combination with a failing community correction program, the rates of repeat offenses have been on the rise among members of this group.

These issues are addressed by Bill 86. The Ohio Judicial Impact Statement has broken the changes into three broad categories:

In addition to addressing issues of overpopulation, the bill has clarified current state law regarding sentencing. The Ohio Revised Code had previously contained policy guidelines which were later declared unconstitutional by the Supreme Court of Ohio in State v. Foster. The court declared a sentencing guideline unconstitutional which required judges to conduct independent fact finding which included an element of offense not proven before the jury beyond a reasonable doubt.

Unfortunately, the unconstitutional language remained within the revised code, which caused confusion among both the general public and practitioners of the law. The bill removes this language. In its place, the law now calls for judges to use minimum sentences when appropriate and revived the presumption of concurrent sentencing.

Reforming Felony Sentencing

The growing overpopulation problem in Ohio’s prisons is addressed through the bill’s sentencing reform provisions related to

felony charges. For example, first time fourth and fifth degree offenders are no longer necessarily sentenced to prison terms, but instead are required to serve a one year sentence of community control sanctions. Also, inmates who have served at least 85 percent of new sentences can be released under certain circumstances.

The bill also aims to reduce the number of offenders who must appear in court in the first place. A fifth degree felony theft charge was originally defined as stealing between $500 and $5,000 in goods. Now the amount is increased to a range between $1,000 and $7,500. Fourth degree offenses are also increased, instead of beginning at $5,000 they now range from $7,500 to $150,000. The bill also adds Medicaid and workers’ comp fraud as a form of theft.

In addition, those accused of theft, unauthorized use of a vehicle, forgery, nonsupport, issuing bad check and credit card fraud are now eligible for intervention in lieu of conviction.

The bill also eliminates sentencing disparities between crack cocaine and crack powder offenses while creating a new category for marijuana trafficking crimes.

Judicial release is also expanded, allowing those serving non-mandatory terms of more than 10 years to be released. Originally, judges could only issue a release for terms less than 10 years.

Reforming Juvenile Justice and Decreasing Recidivism

Juvenile justice elements have also been reformed. The bill eliminated most mandatory transfers to adult court and allowances for early judicial release have been expanded. The bill also codifies competency determinations for juveniles, providing both a definition and procedure for determination.

In addition to prison population growth issues and streamlining judicial operations, the bill also addresses high recidivism rates and corrections costs. This is done by incorporating recommendations from the Council of State Governments Justice Reinvestment Project.

The recommendations involve holding first time property and drug crime offenders accountable by serving probation terms and requiring treatment instead of prison sentences in certain cases. Next, the center recommended that the state develop a clear set of criteria for candidates which would benefit most from community correction programs. Finally, statewide standards for probation were established.

The Big Picture

This bill is designed to increase public safety by focusing supervision and treatment resources on offenders who are good candidates for rehabilitation but have a high risk of recidivism. It works by focusing on these specific candidates and not attempting to stretch the few available resources among all offenders. Safety is further ensured as the bill does not apply to offenders serving life sentences or offenders of violent crimes.

Some judges question whether the bill will effectively address prison overcrowding. Although the sentencing revisions are designed to keep low-level offenders out of prison and focus on community based programs, judges argue these offenders rarely serve prison time under current law.

Judges also argue the bill limits judicial discretion in sentencing. Instead of allowing a judge to consider an offender’s criminal record, willingness to reform, employment status and drug test results in developing a sentence, the judge must implement a set, preordained sentence.

Only time will tell if this legislation will decrease the current prison population and rate of repeat offenses in the state. In the meantime, it is important to note that some of these provisions are retroactive. As a result, if you or a loved one is charged with a crime or is currently serving a prison sentence it is important to contact an experienced Ohio criminal defense attorney to better ensure that your legal rights are protected.